I have met and heard the tragic stories of many parents. PA is a function, by and large, of a custodial ex-partner, although some alienation can start while the couple is still together.

This blog is a story of experiences and observations of dysfunctional Family Law (FLAW), an arena pitting parent against parent, with children as the prize. Due to the gender bias in Family Law, that I have observed, this Blog has evolved from a focus solely on PA to one of the broader Family/Children's Rights area and the impact of Feminist mythology on Canadian Jurisprudence and the Divorce Industry.

Monday, April 30, 2012

When is Pro-Choice not Pro-Choice?

Mara Hvistendahl is pro-choice, except when she is not.

She believes a woman should have the right to terminate a pregnancy. Except if she is in China or India and wants to abort a female fetus because she was hoping it was a male. In those countries, the toll of “missing” girls is in the millions, despite existing bans on sex-based abortions.

While she said a ban in the Asian context “makes complete sense,” she is solidly against a U.S. bill that would criminalize the practice in America — the Prenatal Nondiscrimination Act introduced by anti-abortion Republican Trent Franks last November.

Because it uses the words “child” or “girl” instead of “fetus,” the bill is “more about creating a precedent for a fetus equaling a life … than about restoring the balance of boys and girls in the world,” said the author of last year’s Unnatural Selection: Choosing Boys Over Girls, and the Consequences of a World Full of Men.

And Ms. Hvistendahl supports reproductive rights for women, but not necessarily when it comes to knowing the sex of the fetus she is carrying. A woman should have the choice of whether or not to abort, but not to know all the details about it.

“There’s no real need to know the [sex], and that could be an effective way to fight sex-selective abortion,” she said. She summed up her stance by saying: “You can believe in a right but still believe it has limits.”

The Canadian Medical Association Journal this week also urged Canadian doctors to limit women’s reproductive rights, recommending in an editorial that doctors conceal the sex of a fetus from all pregnant women until 30 weeks of pregnancy to curb the incidence of sex-based abortion in certain immigrant communities....

 more here


Justice Minister Nicholson gets upended by Same Sex Divorce TouristsNocholson

By Cristin Schmitz    January 27 2012 issue

A Charter challenge aiming to pave the way for foreign domiciled same-sex couples who married here to obtain Canadian divorces has opened up a can of legal worms, says a family law expert.

However, the federal government’s rapid about-face on Jan. 13 in L. and M. v. A.G. Canada and A.G. Ontario also illustrates that, sometimes, the court of public opinion is the highest court in the land.

“Not all cases have to be fought out in the courtroom,” remarked Toronto family law practitioner Martha McCarthy, who represents a married lesbian couple who live abroad and have filed jointly for divorce in Canada.

“I think that Kirk Makin’s article [about the case in The Globe and Mail Jan. 12] was instrumental in changing the government policy and therefore, hopefully, leading to a total resolution of my [clients’] case.”

She said she was contacted by the newspaper, and not the other way around. “There was not some deep strategy in my office about that — ​that’s not how it happened. My reaction when the [federal Crown’s] pleading was served was: ‘This is a horrible mistake and, if and when the press gets a hold of this, this is not going to go well for the government.’ ”

L. and M. were married in Toronto in 2005. They turned to Ontario’s Superior Court last year to dissolve their union because they reside separately in Britain and Florida, where they can’t divorce because neither jurisdiction recognizes their marriage.

As part of their test case, the pair is seeking a constitutional exemption from the one-year Canadian residency requirement in the Divorce Act because they claim it imposes undue hardship on them and violates their Charter sections 7 and 15 rights to liberty and equality.

They were shocked, however, when the federal government responded to their application by stating that the Ontario court couldn’t divorce them because they were never really married in the first place. If true, this would also apply to the thousands of foreign same-sex partners who have flocked to Canada to marry.

McCarthy condemns as “unsavoury and inflammatory” the argument that other experts have said is consistent with well-established principles of private international law. The federal Crown argued that same-sex couples who married in Canada, but who are domiciled in places where same-sex marriage is not legally recognized, “are not legally married under Canadian law.”

Its legal position prompted headlines, and outraged reactions from gays and lesbians, around the world.

Within hours of the story’s publication, Justice Minister Rob Nicholson began backpedaling. He went further the next day, stating: “We want to make it very clear that, in our government’s view, these marriages should be valid.”

He went on to vow that “we will change the Civil Marriage Act so that any marriages performed in Canada that aren’t recognized in the couple’s home jurisdiction will be recognized in Canada. This will apply to all marriages performed in Canada.”

Nicholson’s spokeswoman, Julie Vaux, told The Lawyers Weekly that the minister “will be looking at options to clarify the law so marriages performed in Canada can be undone in Canada.”

She declined to disclose specifics. The Department of Justice lawyer who represented the Crown in L. and M., Sean Gaudet, was not authorized to comment.

However, McCarthy told The Lawyers Weekly she received correspondence from Gaudet on Jan. 17, asking her clients to wait for the enactment of the pledged legislative reforms. She said her sense is that the amendments will be unveiled soon after the House of Commons resumes sitting on Jan. 30.

“If that’s not the way it goes, I am going to want to have some discussions [with the attorney general’s counsel], because I don’t think my clients should wait a long time,” she said. “I have had discussion with senior members of Cabinet and have been assured that they intend to resolve my matter, in addition to the greater legal issue, on an amicable and expedited basis.”

McCarthy said a settlement might involve a consent order constitutionally exempting her clients from the one-year residency requirement, as well as withdrawal of the government’s answer that contains the “offensive argument.”

Based on Nicholson’s public comment that the impugned marriages “will be recognized in Canada,” a legislative fix would likely address the feds’ argument in L. and M. that “the Superior Court has no jurisdiction to grant a divorce to the joint applicants because they are not legally married under Canadian law.”

As the government explained in its answer to L. and M.’s application, under private international law “in order for a marriage to be legally valid under Canadian law, the parties to the marriage must satisfy both the requirements of the law of the place where the marriage is celebrated (the lex loci celebrationis) with regard to the formal requirements, and the requirements of the law of domicile of the couple with regard to their legal capacity to marry one another. In this case, neither party had the legal capacity to marry a person of the same sex under the laws of their respective domicile — ​Florida and the United Kingdom. As a result, their marriage is not legally valid under Canadian law.”

A leading divorce authority, Julien Payne of Ottawa, told The Lawyers Weekly that, notwithstanding the public controversy, the Crown’s argument is “certainly consistent with the general rules” of private international law. “What the Department of Justice said is not novel. It’s not a creation of their imagination It reflects the law as it’s understood by basically everybody who writes in the field. That’s not to say those rules can’t be changed, although any change is going to generate problems of one kind or another.”

The problem of divorce for non-resident same-sex couples could have been dealt with when the Civil Marriage Act was passed in 2005, he suggested.

He said the problems would not have arisen in the first place if Canada had confined its recognition of same-sex marriages to persons domiciled in Canada.

Payne also suggested “it might be somewhat problematic” to create a special rule under the Divorce Act exempting same-sex married couples, but not opposite-sex couples, from the one-year residency requirement. Moreover, eliminating the residency requirement  could create a divorce haven for foreigners, Payne said.

McCarthy said she doesn’t anticipate that. “I think the amendments that we are talking about are about the dissolution of the marriage. I think it’s pretty simple to draft an amendment, or an additional provision, for the Civil Marriage Act that just allows for dissolution, but doesn’t specifically allow for corollary relief. Nobody is suggesting that this is going to be [opening the door to] bitter divorces involving custody disputes and property in other countries.”


Parental Alienation Day 2012 in Barrie, ON, Canada

Parental alienation rises to surface

‘Children deserve to choose the right to be loved by both parents’

With more than 43% of the Canadian population divorcing, it’s likely you know someone who’s gone through a messy split.

When more than half of those divorces involving families with children, the messy factor ratchets up a notch to a painful custody battle where defeated parents will tell you nobody wins.

A dozen parents decked out with signs in their hands, and their hearts on their sleeves, met at Centennial Park after holding a small demonstration at the Barrie courthouse demanding change in family law.

The real weapons of mass destruction are the family court system, read a placard placed against the climbing equipment at the beach.

The dozen parents, equal parts men and women, stood unified in their pain as all admitted they’d lost custody of their children through long, messy court battles.

“The status quo has got to go,” said Sharon Neary, using her maiden name.
Neary says she has three children, but doesn’t see two of them due to a poor relationship with her ex-husband.

“It’s a form of mental and emotional abuse. Everybody knows about it, but now it’s got a name — parental alienation.

“Children deserve to chose the right to be loved by both parents.”

Paulette MacDonald, a former volunteer with the Parental Alienation group, and now a co-director with the Canadian Equal Parenting Council, said there are 42 organizations across the county pushing for family law reform for equal parenting.

“It removes the incentive for single custody in the legal system,” MacDonald said.

Once joint custody becomes mandatory, parents won’t use children as weapons against their former spouse and joint custody will ensure both parents play a part in their children’s life, she said.

Perched on the children’s playground equipment at the beach, MacDonald read a statement about forgiveness by Dr. Anita Vestal, who offered a free e-book entitled Making Friends with the “F” Word: 20 Practical Ways to Forgive to those in attendance.

At the end of the meeting, and perhaps as a metaphor for a child’s fragility, the assembled group blew bubbles into the cold, strong wind before leaving.

As the rainbow bubbles floated away, a set of twins in matching toques and coats chased them giggling, to the water’s edge.

Sunday, April 8, 2012

Shared Parenting bill from Canadian Senator Anne Cools?

Four in ten Canadian marriages end in divorce, and many of those breakups are not amicable - especially when children are involved. Things can get even more messy if parents aren't able to settle their own differences, and can't agree on the issue of custody. In those cases, it's up to a judge to decide an arrangement based on "the best interests of the child." And in Canada, that typically has meant awarding one parent with primary care.

The latest data from the Department of Justice shows mothers received sole custody in 77 percent of cases, and father in only 9 percent of the cases.  (Note from M. Murphy" To be verified as this is different than Stats Can info, but latter is older)

After making dozens of trips to the Alberta Law Courts for a variety of issues relating to the custody of his two children, Russ McNeill believes the current system isn't working.

"I don't think the judicial system treated me fairly. I don't think it treats any man fairly. I think it's designed to put everybody into a cookie cutter that basically says dads get every second weekend and a mid-week visit," he says.

In addition to draining him and his ex-wife emotionally, McNeill says the system pits the parents against each other.

"I don't see that actually stopping the conflict. If anything it increases the conflict because the other parent feels they're being removed from their children unjustly and they're very angry so they will look harder to find anything possible to find fault with the other parent," McNeill adds.

He would like to see the current model be changed to adopt more of a shared parenting arrangement.
"Go to mediation. Stay away from lawyers."

Dr. Edward Kruk, an associate professor of social work, has been studying the family court system and the effects sole custody decisions have on parents.

"We have kind of a indeterminate or shall we say a discretionary best interest of the child standard where judges are just guided by their own idiosyncratic biases and sort of subjective views of what's best for a child," Dr. Kruk says.

He says what's needed is an approach that still focuses on the best interest of the child, but from the perspective of the child.

"And children are telling us clearly that their best interests are served by equal time with each parent."

Dr. Kruk argues that a parent should not be separated from a child unless there's a proven history of violence.

Senator Anne Cools, who has spent decades studying the psychological effects of separating a child from a parent, is also an advocate of shared parenting.

In 1998, she was a member of a special joint committee that looked at issues of parental custody and access to children. The committee's principal recommendation was that shared parenting should be presumed in family court - a recommendation which has not been accepted by successive governments.

But Senator Cools is not giving up her fight, and is currently working on a bill that would have a regime of shared parenting.

"I want balance and equilibrium and fairness because those children haven an entitlement to meaningful involvement and continuing involvement with each and both of their parents," she says.

Until that happens, McNeill has a piece of advice for other parents who are going through a divorce: "Go to mediation. Stay away from lawyers."
With files from Slav Kornik, Global News

This is part of a two-part series. On Sunday in the second part, we will look at the emotional and psychological effects on parents and children when separated.